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2008 habeas ruling may pose snag as U.S. weighs indefinite Guantanamo detentions

By Del Quentin Wilber
Washington Post Staff Writer
Saturday, February 13, 2010; A02

The case against Saeed Mohammed Saleh Hatim seemed ironclad.

The Justice Department alleged that Hatim, a detainee at the U.S. military prison at Guantanamo Bay, Cuba, trained at an al-Qaeda military camp in Afghanistan, stayed at terrorist guesthouses and even fought in the battle of Tora Bora. The accusations were built on Hatim's own words and those of a witness, a fellow Guantanamo Bay detainee, court records show.

But a federal judge reviewed the case and found the government's evidence too weak to justify Hatim's confinement. The judge ordered the detainee's release, ruling that he could not rely on Hatim's statements because they had been coerced. He also found that the government's informer was "profoundly unreliable."

The case is more the rule than the exception. Federal judges, acting under a landmark 2008 Supreme Court ruling that grants Guantanamo Bay detainees the right to challenge their confinements, have ordered the government to free 32 prisoners and backed the detention of nine others. In their opinions, the judges have gutted allegations and questioned the reliability of statements by the prisoners during interrogations and by the informants. Even when ruling for the government, the judges have not always endorsed the Justice Department's case.

The rulings in the Hatim case and the 31 others may be a harbinger of trouble for the Obama administration, which is considering plans to indefinitely detain dozens of Guantanamo Bay prisoners without civilian or military trials. Although the detainees will never face a jury, they are entitled to their day in court under the Supreme Court ruling.

Legal scholars and outside experts who have studied the issue say the government is likely to suffer further losses because many cases appear to be built on the same kinds of evidence that have drawn such skepticism -- incriminating statements by detainees and informers.

"Nobody who has looked at the last 18 months of litigation can emerge with a high confidence level that the government is going to prevail uniformly in cases of people it regards as extremely dangerous," said Benjamin Wittes, a senior fellow at the Brookings Institution who recently co-authored a long paper about the detainee challenges.

The detainees' lawsuits have been brought under the centuries-old legal doctrine of habeas corpus, which permits prisoners to contest confinements before judges.

Of the 192 detainees being held at Guantanamo Bay, a Justice Department-led task force has concluded that about 110 can be safely released, either immediately or eventually. It recommended that about 35 be prosecuted in federal or military courts, leaving about 50 who are considered too dangerous to be freed but cannot face trial because the evidence is too shaky to hold up in court. Justice Department officials say they are also concerned that public trials might expose intelligence operations or other classified information.

The number of detainees in that category might rise. Authorities think they must continue to detain at least 30 Yemenis, perhaps more, until the security situation in their homeland stabilizes. About 90 Yemenis are detained at Guantanamo Bay.

Burden of proof

Obama officials are optimistic that they will prevail in upcoming habeas challenges. The Justice Department task force evaluated detainee files for months, and the strength of the habeas cases was a top factor in deciding whether to detain prisoners without trials, the officials said.

"We're confident in our ability to demonstrate to the courts that these individuals are being lawfully held," a department official said.

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, said four prisoners who lost habeas challenges are assigned to the indefinite-detention group. The official would not say how many of those ordered released would have been put in the indefinite-detention category if the judges had ruled differently or not yet ruled.

Another Justice Department official noted that the win-loss ratio is affected by 17 Chinese Muslims who have been ordered released but are not considered enemies of the United States. The department abandoned efforts to justify their detentions before a federal judge. Ten have been transferred to third countries.

Habeas rulings do not always guarantee the immediate release of detainees. Under an appeals court ruling, judges do not have the authority to order the release of prisoners into the United States; that matter is before the Supreme Court. They may only order the government to engage in diplomatic negotiations to facilitate the transfer of detainees.

Federal judges in the District, who preside over all Guantanamo Bay habeas challenges, have established procedures that generally favor the government, allowing the Justice Department to justify detentions based on the "preponderance of evidence," a standard by which the government wins if the facts tip slightly in its favor. In criminal cases, prosecutors must prove a case "beyond a reasonable doubt."

A recent appeals court decision backed that standard and suggested that the burden of proof might be even lower. The appeals panel adopted a broad definition of who may be subject to detention, which could ease the government's burden in future cases.

The reliability issue

Even so, the effect of such rulings remains unclear because judges have being focusing intensely on the building blocks of the government's cases: its witnesses and other evidence.

They have been particularly troubled by the dependability of detainees who become government informants. One in particular, Yasim Muhammed Basardah, has been problematic. The Yemeni has serious psychological problems that include suicide attempts, hallucinations, a severe personality disorder and depression, according to court records, as well as lawyers and government officials, who spoke on the condition of anonymity because they are not permitted to discuss the litigation.

At least three judges have concluded that they could not rely on Basardah's information. He was the principal witness against Hatim, the detainee recently ordered freed by U.S. District Judge Ricardo M. Urbina, who found that Basardah's "grasp on reality appears to have been tenuous at best."

Urbina did not identify the informant by name, but a review of court records makes it clear that he was referring to Basardah.

The government also relied on Hatim's interrogations and his testimony at military hearings, during which he is said to have admitted to training at an al-Qaeda military camp. Judges have been skeptical of such statements unless the government provides evidence that the men were not seriously mistreated. In Hatim's case, the Justice Department did not dispute his contention that he was tortured in U.S. custody and that he made those admissions to avoid further mistreatment.

In November, U.S. District Judge Gladys Kessler ordered the release of an Algerian, Farhi Saeed bin Mohammed, despite government contentions that he was a member of al-Qaeda.

The judge was particularly puzzled by the government's reliance on statements by Binyam Mohamed, a fellow detainee who has since been freed. Mohamed, an Ethiopian, provided the government its most sensational allegation: He told interrogators that the Algerian trained at an al-Qaeda camp in Afghanistan. Kessler wrote that she could not credit Mohamed's allegations because he had been mistreated in foreign and U.S. custody. The government did not dispute his well-publicized accounts of torture. On Wednesday, the British government released a long-secret description of how Mohamed suffered "cruel, inhuman and degrading" treatment at the hands of U.S. authorities.

In December, U.S. District Judge Thomas F. Hogan threw out incriminating statements made by a 28-year-old Yemeni to interrogators at Guantanamo Bay that the government used to justify his detention. Musa'ab al-Madhwani had admitted to interrogators and testified before military hearings that he had trained at an al-Qaeda camp and traveled with its members in Afghanistan and Pakistan, records show.

But the detainees' attorneys argued that the statements were tainted because their client was brutally tortured while in U.S. custody before his arrival in Cuba. He confessed only to prevent further mistreatment, they argued. The government did not contest Madhwani's claims.

Although he threw out the statements to interrogators, Hogan considered the detainee's testimony during military hearings because he did not believe they had been made under duress. That was enough to justify the Yemeni's detention, Hogan ruled. Still, the judge said, "it's a very close case."

Staff researcher Julie Tate contributed to this report.

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